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Section 482: Application u/s 464 and 465 CrPC, 1973
Instructions for drafting
Parties to the Application:
The Accused / convict would be the Applicant herein; and the concerned State would be the Respondents, alongwith the complainant, if there was a prosecution on a private complaint.
Jurisdiction of Courts:
The High Courts have exclusive jurisdiction to entertain these Applications.
1. Section 482 of CrPC, 1973, recognizes the inherent powers of the High Courts to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
2. Some of the landmark rulings of Apex Court which illustrate the scope and powers of High Courts to grant relief under this jurisdiction.
Para 18: In State of Haryana & Ors. (appellant) v. Bhajan Lai & Ors. (respondents) [1990], this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are:
(1) Where the allegations made in the first information report or the complaint, even, if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence; justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same; do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
3. In Som Mittal v. Govt. of Karnataka [2008], the Supreme Court, among other things, said, when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.
4. In R.P. Kapur v. State of Punjab [1960] this Court summarized some of the categories of cases where inherent power should be exercised to quash a criminal proceeding against the accused, stating:
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction;
(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
5. The inherent powers of the HC is a wide and wholesome power. If the court has to examine and determine whether the continuation of criminal proceedings would be just or would be improper, there is no reason why there should be any limitation on the powers of the court to look into all the materials available on record. There is nothing in law to place any such limitation on the powers of the HC. Surendra Kumar Yadav versus State of Bihar – [1989 Patna HC].
In the case of State of Bihar vs. Muradali Khan and others, the Apex Court held as under [1989] …..When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the .accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, RupanDeol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, SatvinderKaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and State of Karnataka v. M. Devendrappa.]" (emphasis supplied).
Material facts to be pleaded:
1. The facts showing that “Charge” was not formally framed in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant herein, in respect of the said offence, and, in fact, serious prejudice has been caused thereby to the Applicant herein.
2. The facts showing that there was error, omission or irregularity in the framing of charges in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant herein, in respect of the said offence, and, in fact, serious prejudice has been caused thereby to the Applicant herein.
3. The facts showing that there was misjoinder of charges, in respect of certain offences, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant herein, in respect of those offences, and, in fact, serious prejudice has been caused thereby to the Applicant herein.
4. The facts showing that there was error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or there was error, or irregularity in any sanction for the prosecution, and failure of justice has in fact been occasioned thereby to the Applicant herein.
5. The facts showing that no valid charge could be framed against the Applicant herein, having regards to the facts of the case and having regard to certain facts stands proved.
Limitation period to initiate Criminal Complaint u/s200:
There is no limitation period.
Court fee:
No Court fee.
Verification Clause:
1. Whereas Parties to the litigation makes series of submissions and allegations against each other, it is a basic requirement of law that Parties must specify in the Verification clause, by reference to the numbered paragraphs of their pleadings, as what facts are which are true to their own knowledge; and what facts are based on the information, belief and legal advice.
2. Further, Section 297(2) of CrPC, 1973, among other things, stipulates that whoever party is obliged to file an Affidavit in any of the proceedings before the Court, the said Party is obliged to specify in his said Affidavit, by reference to the numbered paragraphs of his affidavit, such facts as the deponent is able to prove from his own knowledge and such other facts he has reasonable ground to believe to be true; and in the latter case, the deponent is obliged to state the grounds of such belief. In the absence of such compliance, a proceedings cannot be said to be duly instituted, and is vulnerable to challenge to be dismissed. Affidavit is required to be filed in Complaints filed u/s 200 of CrPC, 1973, and in other proceedings initiated before the Magistrates Court, Sessions Court or before the High Court.
3. The person verifying his pleadings is obliged to sign. The Person verifying is also required to state the date and the place at which it was signed.
4. This requirement of law is based on the principle that whoever comes before the Court, must come with the clean hands and also must come with certain facts and his case should not be based on general, vague or speculative facts.
5. Therefore, the law requires that whatever is stated by the Party in his proceedings, he must clarify that which statement is made from his own knowledge and which statement is made, based on other information, or based on legal advice.
6. This is significant from another perspective, where in cases, if the submissions made by the Party were turned out to be false, then, the said Party may be held guilty of perjury / contempt of the Court for knowingly making false statement and misleading the Court, in cases, where he had verified the concerned false Paras emanating from his own knowledge.
7. The profound object of this verification clause therefore is to prevent or cease frivolous submissions / Applications.
8. The consequences of not verifying correctly may entail penal consequences. The Apex Court, comprising three Judges Bench, in the case of S.R. Ramaraj Versus Special Court, Bombay, 2003, have inter alia, observed that, “A person is under a legal obligation to verify the allegations of fact made in the pleadings and if he verifies falsely, he comes under the clutches of law”.
IN THE HIGH COURT OF JUDICATURE AT _______-
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20___
Application u/s 482 of CrPC, 1973
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
INDEX
Sr. No. | Particulars | Exhibit | Page No. |
1 | Synopsis, Authorities, Points to be urged | ||
2 | Memo of Application | ||
4 | “A” | ||
5 | “B” | ||
6 | “C” | ||
7 | “D” | ||
8 | “E” | ||
9 | “F” | ||
10 | Vakalatnama |
IN THE HIGH COURT OF JUDICATURE AT __________
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20___
Application u/s 482 of CrPC, 1973
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
SYNOPSIS
Date | Particulars | Exhibit | |
1 | |||
2 | |||
3 | |||
4 | |||
5 | |||
6 |
THE ACTS TO BE RELIED UPON
The Criminal Procedure Code, 1973
The IPC / Negotiable Instruments Act, 1881
Any other as may be applicable.
THE AUTHORITIES TO BE CITED
Judgment at the time of hearing.
THE POINTS TO BE URGED
a) It is a case where “Charge” was not formally framed in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or
b) It is a case where there was error, omission or irregularity in the framing of charges in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or
c) It is a case where there was misjoinder of charges, in respect of certain offences, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of those offences, and, in fact, serious prejudice has been caused to the accused thereby; or
d) It is a case where there was error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, and failure of justice has in fact been occasioned thereby; or
e) It is a case where no valid charge could be framed against the Applicant herein having regards to the facts of the case and having regard to certain facts stands proved.
IN THE HIGH COURT OF JUDICATURE AT __________
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20__
Application u/s 482 of CrPC, 1973
IN THE MATTER OF
Sections 482 and ____ of Criminal Procedure Code, 1973;
AND
Sections ____ of the IPC
AND
Impugned Order passed by Ld. Magistrate in Criminal Complaint
(Full title)
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
THE HONOURABLE CHIEF JUSTICE
AND OTHER PUISNE JUDGES OF
THE HONOURABLE HIGH COURT
OF JUDICATURE AT ________
THE HUMBLE APPLICATION OF THE APPLICANTS ABOVENAMED
MOST RESPECTFULLY SHEWETH.
1. A very brief introduction of the parties to the case.
2. The brief facts of the case which are germane to the present controversy, are –
(a)
(b)
(c) Being aggrieved by the aforesaid impugned Order dated ____ Applicant invokes the inherent jurisdiction of this Hon’ble Court recognized u/s 482of CrPC, 1973, on the grounds set out hereinafter.
3. Infirmities in the impugned Order: (The Applicant needs to deal with the observations made in the impugned order, and the findings recorded in pursuant thereto, and assailing those observations and findings, either on facts or on law or on both. Please refer (Link of Illegal / perverse orders of the Court, grievance LG 19).
4. Other submissions, if any.
5. The Applicants submit that Article 21 of the Constitution of India commands that “No person shall be deprived of his life and liberty” except according to the procedure established by law. In Criminal jurisprudence, the only safeguard available to an innocent person is the “scrupulous and strict adherence” to the procedure prescribed in concluding the “guilt of the accused person”. Thus, whenever, any of the “prescribed procedure” is not “duly followed and complied with”, and where such non compliance, expressly or by necessary implication, frustrate the personal liberty of the accused person, the violence to fundamental right of the accused enshrined under Article 21 of the Constitution is imminent. And therefore the impugned Order of the Ld. Magistrate is in breach of fundamental right of the Applicant Nos.3, 5 and 6, enshrined under Article 21 of the Constitution of India.
6. The Applicants submit that institution of any judicial proceedings against a person carries an implicit degree of coercion and no judicial proceedings should be triggered at the whims and fancies of the litigants, which otherwise amounts to sheer harassment, embarrassment, and substantial expenses to the person saddled with unwarranted litigation and most importantly, causes the waste of the precious time of the court in hearing the frivolous and meritless litigations.
7. Grounds for Relief: (as may be applicable to the facts of the case) –
a) It is a case where “Charge” was not formally framed in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or
b) It is a case where there was error, omission or irregularity in the framing of charges in respect of an offence, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of the said offence, and, in fact, serious prejudice has been caused to the accused thereby; or
c) It is a case where there was misjoinder of charges, in respect of certain offences, and a finding, sentence or order was passed by a Court of competent jurisdiction against the Applicant, in respect of those offences, and, in fact, serious prejudice has been caused to the accused thereby; or
d) It is a case where there was error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, and failure of justice has in fact been occasioned thereby; or
e) It is a case where no valid charge could be framed against the Applicant herein having regards to the facts of the case and having regard to certain facts stands proved.
8. The Applicants submit that there has been no delay in preferring this Application.
9. Jurisdiction Clause: The Applicants state that the impugned Order is passed by______ at ______Court at _____;. The Applicants states that, therefore, this Hon’ble Court can safely invoke their jurisdiction to entertain the present Application and grant reliefs as prayed; and pass authoritative Orders against the Respondents.
10. The Applicants further submit that Applicants have not filed any other proceedings in any Court of law or in the Supreme Court, against the Respondents herein, in respect of the reliefs prayed in this Application.
11. The Applicants, with the leave of the Hon'ble Court, be allowed to add / amend / delete any clause in the present Application.
12. The Applicants therefore, most respectfully pray as under –
a) To call for the records and proceedings of this Case from the Ld. Magistrates Court / Sessions Court;
b) To quash and set aside the impugned finding / Sentence / Order dated _____;
c) Be pleased to pass order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
d) Be pleased to direct a new trial to be had upon a charge framed in whatever manner the Hon’ble Court thinks fit;
e) Be pleased to quash the conviction recorded against the Applicant herein;
f) Pending the hearing and final disposal of the present Application, the operation of impugned finding / Sentence / Order be stayed;
g) The impugned finding, sentence be reversed or altered to the extent __________ ;
h) To pass such other and further Order and to grant such further reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case.
_____________
Advocate for the
Applicants
_______
Applicant
Verification
I, _______, the Applicant hereinabove, do hereby solemnly declare that what is stated in Paras ____ are true to my own knowledge, and what is stated in Paras ______ are based on information and legal advice which I believe to be true and correct.
Solemnly declared at Mumbai )
This Day of _____, 2015 )
Applicant
Before me
VAKALATNAMA
IN THE HIGH COURT OF JUDICATURE AT _______
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20___
Application u/s 482 of CrPC, 1973
(Full title)
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
To,
Registrar General
_____ High Court
Sir / Madam,
I / We, ____________, the Applicant/s, in the above case, do hereby appoint Mr. ____________, Advocate, to act, appear and plead for me and on my behalf in the above matter.
In witness whereof, I / we have set and subscribed my / our hands to this writing at ________.
Dated this day of ______ 20____
__________
Applicant
Accepted,
Mr.______________
Advocate for ______
___________________
__________________
__________________
___________________
Mobile No:________
Email Id:_________
Adv. Code:
IN THE HIGH COURT OF JUDICATURE AT __________
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20___
Application u/s 482 of CrPC, 1973
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
LIST OF DOCUMENTS RELIED UPON
1. Exhibit “A”:
2. Exhibit “B”:
3. Exhibit “C”:
4. Exhibit “D”:
5. Exhibit “E”:
6. The documents referred and relied upon in the Application;
7. The documents in the possession of the Respondents;
8. Any other document, with the leave of the Hon’ble Court.
_______________
Advocate for the Applicant
OR
Applicant – In – Person
The copy Exhibits / documents annexed in the Application
IN THE HIGH COURT OF JUDICATURE AT _________
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. _________OF 20___
Application u/s 482 of CrPC, 1973
_______________ …..Applicants
(Original Accused)
Versus
(1) The State of Maharashtra
(2) ________________ ….. Respondents
(Resp No.2 being the Original Complainant)
AFFIDAVIT IN SUPPORT OF THE APPLICATION
I, ______Adult, aged about___ Indian Inhabitant of _______ / authorized signatory, the Applicant herein residing at _______ do hereby state on solemn affirmation as under –
1. I say that I am conversant with the facts of the present Application I am therefore able to depose to the same. I have filed the above Application seeking prayers more particularly mentioned in the Application.
2. I, for the sake of brevity, repeat and reiterate each and every statement, submissions and contentions made in the Application as if the same are specifically set out herein and form part and parcel of this affidavit. I affirm and verify the correctness of the each and every statement, submissions and contentions as set out in the Application.
3. I further say that, facts which are set out in the Application at Paras ______ are based on information and belief and I believe it to be true, on the ground that _________.
____________
Applicant
___________
Advocate for the
Applicant
VERIFICATION
I, ________________the abovenamed Applicant do hereby verify the contents of what is stated in the aforesaid paragraphs ___ to ____ are true and correct to my knowledge and I believe it to be true and correct; and nothing stated herein is false and nothing has been concealed.
(Solemnly affirmed at ______)
This day of 20 )
Deponent
Identified / Interpreted / Explained
By me
_____________
Advocate for the
Applicant
Before me
Steps after Institution of Application
1. Urgent Hearing of Application, if any preferred by the Applicant, for obtaining Interim / Ad-Interim Relief;
2. Refusal or grant of Interim / Ad-Interim Reliefs by the Court;
3. Dismissal of Application or Issuance of Notice by Court to Respondents;
4. Service of copy of Application upon Respondents;
5. Reply of Respondents, if any;
6. Oral Arguments before the Court / Submission of Written Arguments;
7. Order.
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